This chapter will now outline the laws by which Sir Robert Carey would rule, and then say something of the Commission of 1597. ((The Commission of 1597 was the last of the Commissions to be set up before the Union of the Crowns, and the 36 clauses printed in W. Nicolson, (1747), Leges Marchiarum, have been included as Appendix B. The Commissions were set up when the state of the border was deemed so bad that representatives from either side had to be selected to represent their government. The Commissions would attempt to sort out all past bills, and would draw up new, or revise past laws. The previous Commissions to meet in Carey’s lifetime were in 1561, 1563, 1586, 1588 and finally 1597.)) It is hoped that this chapter will provide an understanding of the laws of the Borders, and that the Commission of 1597 will show the problems the Border faced at the time of Sir Robert Carey. For example if there was a law against malicious allegations resulting in arrest, ((Clause 14, the Commission of 1597.)) this clearly shows that there was a widespread problem of lying, most probably for revenge. In doing this, sufficient understanding of the laws should be given to show the extent of Sir Robert Carey’s powers.

The official duties and responsibilities of the Wardens of the March were to guard the frontier against Scottish inroads; to meet with their opposite Warden to administer justice for the area; pursue fugitives; muster the March for defence; and generally to keep good rule throughout the March. To perform duties the International Border Laws were devised throughout some 300 years to deal with the particular problem of the Anglo-Scottish Borders. These laws were introduced to deal effectively with situations involving two jurisdictions and two codes of law, where ordinary laws were too slow and cumbersome to be effective. They were introduced as a rapid, and hopefully, effective form of justice, and became known as The Border Laws.

At the centre of the Border Laws was the Day of Truce, a meeting between the opposite Wardens for the administration of cross Border justice. According to law these meetings would be held once every month, ((W. Nicolson, (1747), Leges Marchiarum, p86.)) though in reality this was not the case. The Border Commission of 1563 was restating the need to carry out the Truce Days, ((W. Nicolson, (1747), p85.)) so obviously the Wardens had been lax in their duty. It was not hard, however, for a Warden to feign illness, or to be on some other errand, if he had no wish to turn up to a meeting. Sir John Forster was accused by Lord Eure in a letter to Burghley on the 31st January 1596 of not holding a Day of Truce since last August.48 It was also the rule that the meetings should be held within a Border town with not more than 100 men in attendance. This, however, was not always the case, for example when Carey wrote to Cecil on January 31st in relation to a trial of his two Wardens, (( This is in relation to the hunting fray at Redesdale and is discussed in Chapter 3.)) he was asking for the 200 foot from Berwick to be sent to the Day of Truce, as he expected the Scots to cause some trouble if the outcome was not to their liking.

There was still confusion about Border meetings and on October 10th 1598 Sir W. Bowes wrote a letter to Cecil referring to the ‘old controversy as to Border meetings’. ((Sir Robert Cecil (1563-1612), was Queen Elizabeth’s Secretary of State from 1596.)) Days of Truce, according to the letter, comprised a number of stages, taking assurance; that assurance is usually taken by the English going into Scotland, and immediately after, by the Scots of the English; and meeting in some church or town for business. The Wardens’ meetings were usually to be found within the Scottish Borders, though there is no one reason given as to why this was so. There are some speculations, ranging from a past Day of Truce in England where the English attacked, and in response the Scots refused to enter England on assurance again, to an assertion that when a war ended it was the Scots who must first demand peace, and the English who must first demand assurance. Whatever the reason, in practice, the Day of Truce was often held wherever was most convenient for the Wardens. (( J. Bain, ed., (1896), CBP, Vol. II, p565.))

The taking of assurance basically meant that from sunrise of the day of the meeting, till sunrise of the next day, every person attending the meeting was considered to have safe conduct. The Warden would be expected to ensure not only the appearance of the inhabitants of the opposite March that he had in custody, but also all those of his own march against whom complaints had been made. Complaints took the form of Bills written up by the Warden and presented at a Day of Truce, and it was these Bills that provided the main focus for the day. They would often include accusations of murder, kidnapping, wounding, robbery, arson, or ‘recetting’. ((‘Recetting’ meant either harbouring criminals, or receiving stolen goods.)) Due to the number of Bills that the Wardens had to deal with, not all of them may be covered in a day, and it was sometimes the case that another day was needed. Often, Bills which were equal to each other, and presented by people from opposite Marches, might be struck off, cancelling each other out. If someone was found innocent the Warden would write ‘clear’ in the margin of the Bill, and if guilty, ‘foul’, and if the defendant didn’t turn up ‘foul conditionally’.

The verdict could be reached in a number of different ways. Firstly by avower, whereby someone of sufficient standing and acceptable to both sides, could be found to swear to the persons innocence or guilt. The second method was by compurgation, which is a communal oath sworn by 3 uninvolved persons. Finding innocent, uninvolved people living on the Borders, would have presented a challenge. The third made the conviction reliant on the Warden, who would ‘speer fyle and deliver’ ((W. Nicolson, (1747), p105.)) upon his honour, if he was certain the person was innocent or guilty. If the Warden didn’t come up with the evidence to support his decision within 15 days, he would be accountable for compensation owed to the complainant for goods stolen. The fourth method was by assise, which involved the Warden of the Scottish March selecting six Englishmen whom he thought he could trust, to act as a jury, and vice-versa for the English Warden. This again held problems; neither Warden may have sufficiently trusted anyone from the other side; or, may select someone of their name or someone of the same name as the person under investigation. Even if an impartial jury was found, threats of violence or later reprisal attacks would not have been uncommon, and it is debatable how good an oath would be when their own goods, or even their lives may be at stake.

One laws of the Realm of England that seems to have found a home in the Borders was the ‘Acte for the followinge of Hue and Crye’. ((Statutes of the Realm, p720.)) The Commission of 1563 still held the custom of following with ‘Hound and Horn, with Hue and Cry and all other accustomed manner of fresh pursuit’, W. Nicolson, (1747), p89.)) and was known as the Trod. There were two types of Trod; the Hot Trod, which would involve immediately following the reivers; or the cold Trod, which left a space of six days to follow. The reason for the six day limit is to try and stop revenge raids. The pursuer would carry a lighted turf on his lance point, as an indication of peaceful intentions, and would announce the trod to the first person they met across the Border, where you could ask for assistance. ((W. Nicolson, (1747), p93.)) There was no law which stated that assistance had to be given, but impeding a Trod was punishable by a fine and seven days imprisonment. (( W. Nicolson, (1747), p93.)) It was also during a Hot Trod that the captured reivers may be executed on the spot, as they were caught red-handed, a phrase which entered into the English language. This is not to say that a Trod would always be successful as the reivers may well turn and fight, or could place an ambush to allow them time to move the slower cattle and goods in their possessions out of reach.

Other March Law offences include kidnapping, truce breaking, attacking castles, impeding a Warden, and importing wool. ((Wool was a valuable commodity and its inclusion within March Law was more to do with money and trade than any threat to the safety of the Border.)) Further laws, while not international, included on the English side a blanket-offence known as March Treason. It has never been discovered exactly what this covered, but it would seem to have been used when the defendant had shown himself to be a serious menace to the March. An example can be seen on September 14th 1596 when Carey arrested Geordie Bourne, after ambushing a number of reivers. Carey ‘called a jury the next morning’ and found Geordie Bourne ‘guilty of March-treason’. ((F.H. Mares, ed., (1972), p36.)) Bourne was one of the band under the protection of Sir Robert Kerr, the infamous Warden of the Scottish Middle March who was also a reiver of some renown. Although Carey later disguised himself as a commoner and gained a full confession from Bourne, which included seven murders, ((F.H. Mares, ed., (1972), p37.)) he had arrested and convicted him for nothing more than reiving. This would seem to support the theory that March Treason was used against the most notorious reivers, though it would not explain why it also covered such a seemingly innocuous offence as the marriage, or even befriending of a Scots person by an English person. ((G.M. Fraser, (1986), p67.)) This would seem to indicate that March Treason was attributed to offences which may in some way compromise the safety of the Borders, such as the large scale reiving of Geordie Bourne which was likely to foment instability, and intermarriage which would further weaken national loyalty.

The last Commission of the Borders met in 1597  (( In Nicolsons Leges Marchiarum (Border laws), the date given is 1596. The confusion seems to come from when the commission was first organised, 1596, and when it actually met, 1597.))after a proclamation by the Queen on August 20th 1596, which read:

‘The Queen being advertised of a similar proclamation by the King of Scots, commands all her subjects on the borders of England to keep peace towards Scotland; and signifies her intention of appointing commissioners to meet those of the King of Scots for redress of a multitude of bypast offences.’ (( J. Bain, ed., (1896), CBP, Vol. II, p177.))

These Commissioners (( For a list of these Commissioners see Appendix B)) were responsible for revising the laws, and would take the role of the Warden court, by going through all complaints since the last commission. The number of complaints which must have built up during this time, even allowing for those the Wardens themselves managed to file, must have presented a demanding task. One thing which can be said of the Commissions is that they had exactly the same problems as the Wardens; in getting people to turn up, and in getting pledges from some of the more notorious reivers. The Commission of 1597 first met on January 14th and by February the 19th the greater part of the Bills had been filed for the Middle March and East March, with the remainder remitted to the Wardens. This was a remarkable achievement and was an advertisement for the rough and ready justice of the Borders. It must be remembered, however, that although the Bills had been filed, getting the pledges would be another matter.

Within the treaty produced by the Commission there were 36 clauses,((See Appendix B.)) which give an idea of the Laws of the Marches, and of the problems that the Commission faced. The Commission did not give the Warden unlimited power, and a great many of the clauses have one thing in common; they are placing time limits and imposing penalties on the Warden in order to force him to carry out justice. For example the Wardens are given a 15 day time limit to do justice against murderers having been required to do so by their opposite Warden. ((Clause 9, the Commission of 1597.)) If the Warden did not manage this he would face an immediate £10 fine, followed by a further £10 each month justice was delayed. This seems to recognise the fact that the Wardens may not always have wanted to deliver one of their own inhabitants, and as such would use stalling tactics. This points to the problem of Warden corruption where, for example in the case of Sir Robert Kerr and Geordie Bourne, the Warden may be protecting the accused.

Time limits, backed by oaths, were also introduced for Wardens to seek out offenders in 15 days after being asked to by the opposite Warden,(( Clause 4, the Commission of 1597.)) and to foul and clear upon their honour and carry out justice again within 15 days. ((Clause 5, the Commission of 1597.)) The Commission then dealt with Days of Truce, ((Clause 3, the Commission of 1597.)) stating that the Wardens should swear an oath to do justice regardless of the person who was being billed against.

Preparations were made to set up a Border Council in every March comprising the most notable and honourable borderers, ((Clause 2, the Commission of 1597.)) selected by their respective monarchs, and entreated to meet twice a year. The need for such a Council must surely question the effectiveness of the Day of Truce, which itself lay at the heart of Border Law. This Council also drew up a list of all notorious thieves, who upon conviction for any crime, could be put to death. ((Clause 7, the Commission of 1597.)) If the offender became fugitive this would be made known and his house demolished. This clause recognises that the past law failed in its attempts to convict the most notorious of the thieves, and it recognises the problem of reivers becoming fugitive.

The Wardens were also asked to draw up a list of all fugitives exiled for theft and robbery within their March. These lists would then be interchanged throughout the opposite Marches, and the fugitives home destroyed leaving them no where to return to. If this declaration wasn’t carried out the Warden would be held responsible for payment of Bills until the declaration was made. This again shows the penalties the Warden faced if he did not carry out his duty.

There are also a number of clauses concerned with pledges (( Clauses 26-35, the Commission of 1597.)) the first of which states that two or more of every surname Billed, were to be entered as pledges. ((Clause 26, the Commission of 1597.)) The system of pledges recognised that filing a Bill was only half the problem, while actually getting the offender to turn up, or the goods or money owed, was another matter. The pledge system shows that the Wardens position may not always have been strong enough to guarantee offenders’ co-operation. This, especially when taken in connection with the setting up of the Border Council, would seem to show that the Wardens may have had the power to carry out justice, but the co-operation this power was based on, was lacking.

The Wardens were the target again in connection with the practice of the Warden Rode, where they or their Keeper should ride or direct any other to follow. ((Clause 6, the Commission of 1597.)) The Warden Rode was a legal attack against an opposite reiver, aimed at reclaiming stolen goods. It was, however, open to abuse where it could be used as nothing more than a legalised raid. This clause stated that a command from the respective monarch was needed, and that whoever accompanied the Rode would lose all redress owed to them.

Feuds were also dealt with by the laws, where those which were the result of a lawful execution, including red-hand, should be renounced. ((Clause 8, the Commission of 1597.)) If the Warden couldn’t get the offender to renounce a feud he would be sent to the opposite Warden till he did. This provision is evidence that feuds were affecting those who were trying to enforce the law, such as the Wardens or their Deputies.

The Commission of 1597 also stated that if a Warden faced two opposite Marches and one of them refused to do justice, the Warden should simply proceed to do justice with the other. It would then be down to the Monarch of the refusing Warden to order him to obey. ((Clause 10, the Commission of 1597.)) This is one of three clauses which seemed to be attempting to speed up the process of the law, as well as recognising past Wardens’ failures to meet for justice. The second clause states that actions of debt would not be subject to the Warden court, and if so, only if the accused was an inhabitant of the March. ((Clause 21, the Commission of 1597.)) The last of the laws concerned the instance when one person was subject to a number of complaints. He should only be filed for those Bills the Warden has ‘fouled’ or ‘cleared’ upon his honour. ((Clause 22, the Commission of 1597.)) All three of these clauses were included to try and attempt to rid the backlog of Bills, and probably to allow the Wardens to concentrate on the more serious crimes.

The laws of the Commission of 1597 have brought up some interesting points, not the least of which is the fact that there are more laws than expected which addressed the problem of the Wardens not doing their job. This was to be remedied by setting fines and making them responsible for paying the Bills. This shows that the problems the Borders faced were not only due to the reivers, but also down to the lack of strong or law abiding Wardens, showing that Lord Eure and Sir John Forster were not alone in their poor Wardenship’s. The Commissions’ findings also show that the Days of Truce had not been effectively implemented by the Wardens. As this is central to Border Law it is hardly surprising that the Commission needed to be called. Border Law was based on co-operation and truthfulness between the two people of the two Marches, but this was obviously found to be lacking where the Wardens had to be told to co-operate, and the people had to swear oaths claiming a rightful Bill.